A buyer from Botswana and a seller from Australia signed a contract for commissioning and installing a drill rig. The buyer claimed that “the consideration
under the contract wholly failed, because the seller failed to commission the drill rig” and requested therefore the return of the sum paid.

Further, the buyer pleaded that Botswana law was the proper law of the contract. The seller contended that the law of Western Australia was the proper law,
and that the Act (Sale of Goods Act 1895 [WA]) applied either for that reason, or because the buyer did not displace the presumption that the law of
Botswana is the same as the law of the forum.

The court discussed the applicable law and came to the conclusion that Western Australian law was the governing law. The court was aware that the CISG
forms part of the law of Australia and was applicable in this case. However the court noted that “Neither party in this case has suggested that there are
provisions of the Convention which require consideration, or that the provisions of the Convention would operate inconsistently with the application of the
Act in the circumstances of this case, and the general law of Western Australia. Having regard to the way the case was run it is unnecessary to refer to
the Convention further …”.

Applying domestic law, the Court defined the particular nature and terms of the contract in between a contract for the sales of goods and a contract for
work to be done and noted that the issue was the sale of the rig and not the construction which was a minor part of the agreement.